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tv   Discussion Focuses on a Possible AUMF Against ISIS  CSPAN  May 8, 2017 6:39pm-8:01pm EDT

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appeal of a maryland u.s. district judge's ruling that blocked the ban and it was earlier today that the oral argument was broadcast live for the first time after c-span's petition to the court was approv approved. you can hear the case tonight starting at 8:00 eastern on c-span. every may, the john f. kennedy library and foundation honors political leaders who have exhibited the qualitities of politically courageous leadership. president obama received the 2017 profile in courage award over the weekend and tonight we'll show you the ceremony held at the jfk library in boston. that starts at 8:30 eastern on our companion network c-span two. next, a discussion about the ongoing fight against isis and whether or not congress should pass an authorization for use of military force specific to those efforts. held by the heritage foundation, this is 1:20.
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>> good afternoon. welcome to the heritage foundation and our douglas and sara allison auditorium. we welcome those who join our heritage.org web site on all of these occasions, for those here in house we would ask that courtesy check to see that our mobile devices have been silenced or turned off and, of course, for those watching online we remind you as well as those joining us on c-span that you're welcome to send questions or comments at any time. simply e-mailing speaker @heritage.org and we will post that on the home page for everyone's future reference. leading our discussion is culley stimson. mr. stimson is manager of our national security law program and a senior legal fellow in our center for national defense. he's a nationally recognized expert in national security, homeland security, crime control, drug policy and immigration. he also writes and lectures widely on policy issues such as the law of armed conflict,
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terrorist detainee policy and interrogations, the geneva conventions, military commissions, the patriot act, fisa and others. before joining us at heritage ten years ago he served as deputy assistant secretary of defense for detainee affairs for both secretaries donald rumsfeld and robert gates and he's been a prosecutor at the local, state and federal levels, he's a third generation navy officer and served as a military prosecutor defense counsel and recently served as deputy chief judge of the navy, marine corps trial judiciary. join me in welcoming cully stimson. cully? [ applause ] >> john, thank you very much for that way too long but warm introduction. speaking of warm, we'll have the air conditioning turned son that will cool down the room a bit. it's a pleasure to welcome a former heritage intern and now
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senator young back to heritage. he represents the great state of indiana which i held my first job in indiana at the culver academies back in '86. he's a fifth generation hoosier, he grew up watching his parents work hard to support their family. his first jobs were delivering newspapers, mowing lawns and providing janitorial services at the family business. after graduating from high school he enlisted in our great united states navy and one year later was offered an appointment to the united states naval academy. upon graduation he accepted a commission in the united states marine corps where he served as an intelligence officer. while based in chicago are with the navy, the senator put himself through night school at the university of chicago where he earned his mba with a concentration in economics. he later received a master's from the school of advanced study in london before returning to the united states to work
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here and later as legislative assistant in the u.s. senate. in 2003, the senator returned home to indiana. he soon met his wife jenny and, again, put himself through night school. this time earning his j.d. from indiana university. they married to in 2005 and worked together at a small law firm started by his wife's great grandfather. today they reside in bloomington when he's not here attending to his responsibilities and they have four young children. like i do. a son, tucker, and three daughters, annalise, abigail and ava. and i will say, as a point of personal privilege, the senator and i first got to know each other when he was a congressman because he had been kind enough to be part of the congressional
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soccer caucus and we played soccer together at a fund-raiser at rfk so he supports charitable institutions, as many senators do. today's topic is one heritage has taken a keen interest in and the congress has taken a keen interest in every now and then and that is the authorization for use of military force. one of the most awesome powers that the congress has under the constitution, one that congress has authorized washington, d.c. five times in our nation's history and declared wars five times in our nation's history and authorized the use of military force over 40 times in our nation's history. the question today that we're delving into is the very fascinating and interesting topic of senator young's proposal for a specific authorization for the use of military force. i would commend to your reading a paper which we just released and my co-author is here on
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analyzing all of the cases out of guantanamo, the habeas cases, to see whether if president trump brought isis members to guantanamo whether the old 2001 aumf would actually apply and if not what the litigation risk would be. so i hope that you read that paper. we won't talk much about that. the point is to hear from the excellent prepared remarks, he's been kind enough to agree to answer a few questions afterwards in which -- and then we will thank the senator who will go back to his duties in the senate and then introduce more panelists at that time. so please give a warm welcome to senator todd young. [ applause [ applause ] >> well, it's a privilege to be back here at heritage and i want to thank those who make the
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events possible and particularly i want to thank cally for inviting me to be part of this event and for your leadership with respect to law of war policy development and all the thoughtful things that you produce and say to help inform our work. today as caully said, i'd like o report on whether it's time for congress to pass an authorization for use of military force against isis. what many of you may not know is that my time here at the heritage foundation came at a historically significant moment. not just historically significant because it gave me a taste of the fine scholarship here but my last day here at heritage was supposed to be september 10, 2001.
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my successor in my administrative assistant role at the heritage foundation had not formally been trained and turnover didn't occur so i volunteered to come back on september 11, 2001. i was buying a bagel for breakfast at the corner bagel shop that is now closed and there's a television screen in the corner and i noted on that screen there was some breaking news, a plane had hit one of the world trade center towers. i arrived here at heritage not certain what had occurred but i had some suspicions and we were told that a second plane had hit a world trade center tower. not too much after that as i recall events. we were looking out the window, saw a large plume of smoke which appeared to be rising from the mall right here in washington, d.c. we later found out that that was the plane that had struck the pentagon. so if there's ever a full-circle moment, i feel like i'm in it right now with respect to my
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first realization of the war on terror and our responsibility as congress to make sure that it is carried out in a responsible way. i come to this issue as someone who, as was said in the introduction, spent years in the marine corps. i spent six years in the u.s. house of representatives, two of which was on the arms services committee and i now sit on the foreign relations committee which, of course, has jurisdiction over authorizations for the use of military force. with that said, i realize this debate has been going on for a long time and a number of my colleagues have shown some real leadership with respect to this matter, particularly i'd like to commend senator caine of virginia, senator flake of arizona for their efforts to be champions when it comes to aums
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and to make sure that congress not only does its due dell jens and communicates about the importance of this issue but acts in the end. for those reasons, i come to this issue with strong opinions but please know i understand i'm not a law of war expert. i have been trained in the law but my opinions are lev veavene with a great dose of humility and you'll be hearing from some law of war experts momentarily. so it's in that spirit that i offer the following comments. i believe it's long past time for congress to consider and pass an aumf in its fight against isis. let me give you three simple reasons why. the first is in doing so we send a clear message to our men and women in uniform that the american people have their backs. as they've done throughout our
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nation's history, members of our armed forces are once again bravely serving and fighting ov overseas to keep us safe and security. on july 4, 2015, i attended on july 4th, 2015, i attended a memorial service outside of memphis, indiana. memphis, indiana, the hometown of the first marine who fell in our war against isis. indiana now has thousands of our men and women in uniform who are directly engaged in one form of combat or another with 266 members of our indiana national guard were directly supported the fight against isis. we owe it to all of our service members and all of our branches, our airmen, marines, soldiers, sailors.
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as they confront isis, they have to know that america, that the representatives stand them. this a lot of talk in washington about supporting our troops. as for the top, it's important on a regular basis -- we commend, celebrate, recognize the extraordinary sacrifices that the men and women in uniform make on our behalf, recognize their families sacrifices, their caregivers. but in addition to talk we need to provide resources and training. we also need to put our rhetorical support into legal action by passing an aumf. the second reason, relates to congress' constitutional responsibility, and the
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allocation of work hours between the executive and legislative branches. as this audience well knows, article one, section eight of the constitution clearly states that congress has the power to declare war. yet 2 1/2 years after the u.s. began bombing isis congress has failed explicitly exercise this constitutional responsibility. the american people have a right to expect better. members of both parties have introduced legislation, make an effort to pass an aumf against isis. the simple remains, congress as an institution has failed to fully honor its constitutional responsibility. as students of history here know, our founders understood that the decision to go to war represents one of the greatest, most serious responsibilities and decisions any government faces.
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to avoid foolish, hasty, unnecessary wars, and perpetual wars that tend to erode liberty, the founders wisely divided war powers between the legislative and executive branches. james madison, who was rightly known as the father of our constitution for his role in drafting the supreme law of the land, explained why the founders gave the power to declare war explicitly to congress. madison wrote, a declaration that there shall be war is not an act merely executive. madison continued, those who are to conduct a war can not just be proper or save judges, but very were up to be commenced, to
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be discontinued, or concluded. they are barred from the latter functions by a great principle of free government. now it get to that which separates the sword from the purse. or the power of executing from the power of enacting laws. while the founders clearly intended the president to serve as commander-in-chief, the founders ran into congress an impressive list of enumerated powers related to war, centering on the power to declare war. in my view, the founders intended, and the constitution demands, that congress play a decisive role in the decision to go to war, not to act as a rubber stamp or a passive observer. for much of american history, congress took that responsibility seriously. according to my numbers, divined from the congressional research service, congress has passed 11 separate declarations of war against foreign nations, and dozens of authorizations for use
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of military force. since world war ii, congress has generally seemed less inclined to fulfill its constitutional duty and explicit war powers. not surprisingly, this congressional advocation has resulted of a consolidation of war powers the executive branch. madison would have arguably found this concerning and most unhealthy for our republic. most agree that the president has the authority to use military force -- in the short term, and cases of eminent national emergency. but no reasonable definition of such an instance should include engagement of the u.s. military forces in protracted hostilities. in foreign countries, absent a declaration of war or authorization of use of military force from congress.
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in short, i believe that this failure by congress to fulfill its constitutional responsibilities related to war powers is not good for our country. third, i share concerns with my colleagues regarding the ability to detain isis fighters in guantanamo. in a well argued legal memorandum last month, they argue that a new aumf is needed to eliminate any legal ambiguity related to the authority to detain members of isis. law of war detention is essential to keeping enemy combatants off the battlefield. i say this as a former intelligence officer, to gather intelligence. we need to protect our country. as the scholars argue, if the trump administration chooses to detain members of isis at guantanamo, these detainees will likely challenge their detention
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on grounds that the 2001 aumf doesn't extend to isis. it's not clear at all to me how the courts would rule. we have a legal risk here that needs to be addressed. passage of an authorization for use of military force targeting isis could address this concern. i realize that some very smart people disagree with me on whether or not 2001's aumf authorizes force against isis. this will continue to be something that people of great principle and high intellect will debate. but mr. stimson, mr. preston, mr. savage who are here today -- will be able to share their views on this momentarily. i will leave that debate to the panel for today.
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i will simply say, for reasons related to supporting our congress' constitutional congress -- all parties, have introduced legislation, make an effort to pass an aumf against isis. on march 2nd, i introduced senate joint resolution 31. this aumf would authorize the
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president, quote, use all necessary and appropriate for second al qaeda, the taliban, the islamic state state of iraq and syria the successor organization, and associated forces, and vote. to eliminate any remaining legal uncertainty, i also included action that makes clear that the aumf includes the authority to detain members of al qaeda, the taliban, and isis. believing that congress should fulfill its responsibilities fully and assertively, my legislation would wire the submission to congress for conference of strategy to defeat isis. i believe congress should act and i've expressed an eagerness to work with them. in a bipartisan manner as well in making compromises. i believe this issue is too important to be mired in politics. as i wrote in an op-ed earlier this year, an aumf against isis
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would synthesize greater congressional scrutiny and oversight of the executive branch's strategy to defeat isis, establish greater accountability by congress to the american people, and a further dangerous erosion in the congressional war powers, that undercuts the ability of the american people to influence our nations decisions related to war and peace. that is why i believe it is time -- past time, for congress to pass an aumf focused on isis. i think you again for having me here today. and i look forward to your questions. >> thank you for those excellent remarks. the check is in the mail for the plug on our paper. i'm kidding, obviously, but we appreciate that you and your staff have read it and we did put a lot of time into it, analyzing all the cases before the d.c. circuit on that. a couple of questions. is there any appetite on the
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hill for an aumf? sometimes the appetite is there, sometimes it isn't. president obama introduced an aumf on the hill. it didn't really get a full hearing. there have been hearings in the years before. what is your general sense of whether there's an appetite today for that debate? >> congress remains an institution that is driven by its members. it really is. most recently we saw 46 members of the house of representatives and a letter to speaker paul ryan that was a bipartisan letter encouraging consideration of an aumf on the house side. i suspect those numbers are a lot larger. on the senate side i noted a couple of people who have been out front with respect to the
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need to pass an aumf and there are others in my private conversations. leadership will respond to the concerns of their members. i can tell you, as i speak to hoosiers, they are concerned about this. my suspicion is that americans from every state understand that the american people themselves need to have a say about this fundamental and incredibly consequential decision about whether or not we send our nation's best in harm's way. i do think there is a growing appetite. allow me to characterize it that way. now is the time to lean in on this as the world appears to be getting more dangerous on a number of fronts. >> you correctly pointed out obviously that the congressional research service noted there had been 11 specific declarations of
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war in congress' history. we lay out those 11 in our paper in five major conflicts. 40-plus authorizations for use of military force, some of which were very narrow. against the barbary pirates. this 2001 aumf is rather capacious compared to others. do you see as a member of the senate foreign relations committee, a path forward on your committee? is there an appetite to take this up and move forward? >> when i first brought this up in january, i wasn't certain. i saw some affirmative nods as i discussed the need for us to finally pass an aumf. in private conversations, i discovered that everyone recognizes that this needs to happen. maybe with some exceptions.
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let me restyle that. i think everyone recognizes it would be optimal for congress to speak on this particular issue. there are some pragmatic concerns that are legitimate. that we would unduly constrain the ability of this commander in chief or a future commander in chief to conduct military operations against isis or other groups listed in the authorization. in a manner required to actually defeat them and achieve our objectives. so there is tension here between those who understand that constitutionally, we have a responsibility to do everything we can to sanction the use of military force and members who don't want to tie the hands of this for or a future president.
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but i think through principled compromise we could end up in a good spot and keep faith with our men and women in uniform and still make sure that we don't just delegate the executive branch warmaking powers. i think there's something else that needs to be said. merely going through the debate in a public forum requires us in congress to sell the need to go into battle to the american people. if we can't do that in a democratic republic, perhaps we ought not be going into battle. that is the responsibility of the president, but not the president alone. it is the responsibility of each of us in congress. i think merely having this debate would be a real service to the american people. >> i appreciate that. in talking with your staff in
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the run-up to this panel, the role we play is trying to stimulate debate and discussion. i am very grateful. can you stay for a couple of minutes? >> absolutely. >> the rules of engagement are the same. for all distinguished speakers at heritage. we would be delighted to take your question. just please raise your hand, identify yourself by name in and organization and ask a question with a question mark at the end. >> thank you, senator. i am paul larkin, a fellow here at heritage. in your opinion, what is the difference between a congressional declaration of war, and a congressional aumf?
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would you choose one over the other? >> in the use of military force, my colleague sort of alluded to, can either be fairly narrow in scope. one example would be the quasi war in the 1790s, where was limited with the action be taken against the barbary pirates who were targeting our merchant textiles. another would be the gulf of tonkin resolution, which some scholars have argued that was effectively a declaration of war because of the breadth of the legislation. but if one were to declare war, it is essentially -- it is incredibly broad in scope. it allows the president extraordinary discretion. there is almost nothing circumscribing it. to seize assets, and to accomplish the objectives behind
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that war. >> and i would note that there is an excellent harvard law review article on this going through all the declarations of war and aumfs and they conclude among other things the declarations of war tend to be out of favor because of the change in national law. i know you all love law review articles, so i will send you a copy of it when i see you. >> who doesn't love law review articles? >> i am jim cason, foreign policy director of the committee on national legislation and i want to first thank you for the letter you sent to the saudis last week on the human rights situation in yemen. i wanted to ask you particularly
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about sunsets because he mentioned it is very broad and seems to be going on without any congressional review at all. in your legislation, do you consider the issue of when it might be sunset and how congress revisits the issue? >> we do not. i struggled with this frankly because the downside to sunsetting is you allow the enemy to figure out when you're going to disengage. when your will might break. you prefer the enemy might not know that. my preference is to give broad discretion to the commander in chief. they lay out the objectives and accomplish those objectives. there is another side to this and i think this is a healthy debate. i think we can avoid a perpetual war by delegating to our
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commander in chief, ensuring a robust strategy, which is sufficiently resourced, and if there is another enemy later that is defeated or degraded, we take up a distinct aumf. >> i think we have time for one more question. charlie savage. >> hi, i'm charlie savage of the "new york times." >> hi, charlie. >> i wanted to follow up on both of those questions. it seems to me there is a little bit of tension between your desire not to have a perpetual war but also including explicitly successful organizations in the language of who you are authorizing military force against. also, i was curious when you raise this with colleagues, some of them thought that to pass an authorization like what you are
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proposing, might constrain president trump. constraints we've heard has been obama's suggestion of a sunset and a limitation on ground forces. it doesn't sound like you had either of those. what constraints are giving your colleagues pause, and what would prevent it from being a perpetual war? >> thank you. the constraints we have are congressional oversight, which we have advocated to the executive branch. then the american people can hold people like myself to account for the decisions we make and that is not a one-off deal. that is moving into the future, if the american people recognize that congress has ownership over the decision to go to war and they indicate they are not happy with the conduct of that war, we try and reflect that. in policy, if we can't persuade them of the merits of going in another direction.
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with respect to the perpetuity possibilities and our version of an aumf, we do indeed include successor organizations to al qaeda, taliban, or isis, recognizing that if one merely changes their name or if another organization is tightly affiliated with one of those entities, then the war can continue. this leads to -- this could lead to a longer conflict without a doubt. the mission isn't really accomplished, let's face it. if a successor organization continues to threaten the safety, the welfare of the american people, our allies and partners. and so, all of this is consistent with my belief that when the united states goes to
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war, we go to war to win. right? we ought not set artificial timelines, and we ought not establish an artificial barrier to going after a hostile organization which may have slightly changed over a period of years. >> please join me in thanking senator young. our traditional gift is a heritage tie, which falls well under the ethics rules. >> thank you so much. >> just give us a sec while we switch things out, folks. i would ask mr. preston and mr. savage to come up, please. >> thank you.
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a few years ago during the obama administration, i had a very high honor and privilege to befriend jeh johnson, who was at the time at the pentagon running the transition before the obama administration came to power on january 20th. and we had a series of discussions over several years and he was kind enough to come to heritage and gave a fascinating speech on the administration's position with respect to detention policy. this was one of many speeches that the obama administration
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senior government officials gave over the course of eight years, all of which have been pulled together in various publications. and i commend them to you to read. that is why i am particularly pleased that stephen preston and charlie savage, but stephen preston in particular who was in the obama administration, kindly agreed to come by and spend some time with us. mr. preston is a partner at a firm that handles government contracts practice. his work includes investigations, federal procurement, civil fraud, foreign investment in the united states, cyber security, strategic counseling and crisis management. from 2009 until 2015, mr. preston served as general counsel of the department of the defense and before that, general counsel of the cia.
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i would note, the only person to hold both positions. during his six years in the administration, he played a leading role in ensuring the united states intelligence activities and military operations fully complied with the law and was a key legal advisor on many of the country's most challenging inconsequential endeavors. he previously served in positions at the pentagon and the u.s. department of justice between 1993 and 2000, including as general counsel to the department of the navy from 1998 to 2000. when not in government, he has practiced law between 1986 and 1993 and of course again today. not surprisingly for his contributions in office, he has received the highest awards presented to civilians by dod and cia as well as the state department, the office of the
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director of national intelligence and department of the navy. he writes and speaks widely on topics related to law and national security, and in 2015, received an adjunct faculty teaching at the law school at the oscar e. rubenhousen lecturer in international conflict and security law. he was appointed to the intelligence advisory board in 2016. he received his bachelor's degree from yale university and law degree from harvard university. let me introduce charlie savage, who by the way, wrote this among other excellent books. this one is entitled "power wars." which i reviewed among others in lawfare blog. charlie savage is a pulitzer prize-winning journalist and the washington correspondent for "new york times" covering post-9/11 legal policy issues since 2003.
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also a hoosier, he graduated from harvard college and holds a master's degree from yale law school. his first book, "takeover," a best-selling account of the bush/cheney administration's efforts to expand presidential power was named one of the best works of 2007 by the "washington post," "esquire" and other institutions. so please join me in welcoming both mr. preston and mr. savage. i thought we would start off by going back in time a little bit if we could. the senator gave his three reasons for congress, for congress reasserting what he believes is their constitutional
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role in the authorization for use of military force against isis. he said that, one, it sends a message to the troops that it is their constitutional duty, secondly and third, he thinks that with respect to the more limited issue of detention at guantanamo, it might add more legal clarity to that. let me start broadly with your reaction to his comments and anything you want to add to them. i will start with you, mr. preston, and then move to mr. savage. >> before i do that, let me thank you for the opportunity to be here. and thank you for your contributions to the debate, the public debate about national security law issues as evidenced by your most recent paper and of course for your service as a naval officer. very grateful for that. let me also say what a privilege it is to share the panel with my
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friend, charlie savage, who has done so much to report on the role of law and legal policy and national security, but also to elucidate those issues for the reading public. i'm very happy to be here. to respond to your question, and not surprisingly to me, i found myself very much largely in agreement with the senator. i think we can all remember in summer of 2014 when isil, isis, whatever you want to call it, captured the attention of the united states and of the world with appalling displays of brutality, including the gruesome murder of u.s. citizens held captive in syria. great swaths of land, territory falling to isis in iraq. it was imperative at that time
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for the president on behalf of the united states to order the use of military force to address the threats in the region and to our interests as well. the president did so expressly on the authority as president and commander in chief under article ii of the constitution. but then under the nixon era war powers resolution, there was raised the question whether congress needed to authorize the use of force against isis, or whether that authority, congressional authorization was embodied in the existing legislation. it fell to the lawyers in the administration in the first instance to examine that issue, which we did intensely. and we concluded that the 2001 and 2002 aumf provided authority
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for the actions that the president was ordering in iraq and syria against isis. i believed then and i believe now that was the correct conclusion, and i assume it is that conclusion that provides a basis for our government to continue to prosecute the fight against isis. but i also firmly felt then and feel as strongly now that it was important, i would even say imperative for congress to act, for congress to carry out its constitutional role in the war fighting, the decision that took this country to war. not because at the time it was necessary in order for the military action to be lawful, but as the senator underscored, it is important in our democracy for congress to play its role
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and fulfill its constitutional responsibility here. also important as a practical matter to demonstrate that our government was fully behind this fight, to demonstrate we were behind our men and women fighting the fight and also to demonstrate to the american people that its government was united in its support for the fight. also importantly, the senator didn't mention but i expect would agree, to demonstrate to our partners and to our adversary that this government and our country is united in the fight. to circle back to your question, i think that seems to be what is animating the senator's resolution. the theme he was sounding in his remarks. i will agree with that. >> charlie, the question is on the table.
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and if you want to pick up anything stephen said, please do. >> two things. the senator didn't make the case about why some people are uncomfortable with the idea that the existing use of force authorizations cover the conflict with isis. just for the audience or whoever is watching on c-span, to quickly summarize, isis grew out of iraq's al qaeda affiliate and ran the insurgency against us from 2003 on, but it is no longer part of al qaeda. the two groups have had a leadership split, a disagreement not just about who should be in charge and who is the rightful heir of bin laden, but also about deep strategic issues. should there be a caliphate? are we being too brutal to other muslims when we should be keeping the muslim world united against the west? they are literally at war with
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each other. what used to be until ten minutes ago, the nusra front, known as al qaeda's affiliate in syria is literally being killed by the islamic state. it seems bizarre from that vantage point when the obama administration first brought out the theory, that these groups were literally at war with each other were basically the same group. clearly no one in 2001, when congress authorized use of force was thinking about a conflict 15 years later in syria. the senator didn't bring this up and this is still the cleanup from the decision to invade iraq in 2003. the discomfort with the previous administration was they declared
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they had gotten out of the iraq war. susan rice said explicitly the government was no longer relying on that authority and congress should clean up the books by rescinding it. it was odd to suddenly be relying on it or saying it was an available reservoir of authority. so that is why this is been an uncomfortable thing. why did the obama administration first put forward the theory that was described? i think that resonates with something else in the senator's remarks, which is that he didn't actually say it was necessary. in his first argument for why congress should now do this, it will make the troops feel better, we're behind them, which is a very soft argument. an aesthetically nice thing to
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do and maybe if the trump administration wants to bring in isis detainee to guantanamo, it would remove some of the litigation risk of whether the authority does extend to this kind of a detainee. he didn't say -- he was unwilling to say, that authority does not cover the war. this is an unconstitutional thing that now two presidents have been engaged in and we've got to clean it up and do our constitutional duty by providing real authority for this thing that has been happening for 2 1/2 years. i think the reason he didn't do that is he doesn't trust congress to do its job. he doesn't want to go out on a limb and say, if you don't, this war has to end, it is unconstitutional. in the same way, back in 2014, president obama was faced with a national security imperative as stephen described it, and did not trust congress to come back
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heading into the 2014 midterm and actually pass something. so the choice was to do nothing, or do something and come up with a good enough theory, and that is what they did. i think the unwillingness to trust congress to actually move continues to infect this debate. if you don't say it's necessary, it's very hard to get congress to act on something so controversial. and who knows how it will look like five years from now, and whether it's popular or not. look how much john kerry suffered for having endorsed the iraq war. unless enough members of congress are willing to go there, which apparently there continue not to be, there's not going to be a really resounding sense of the and this
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must happen because otherwise they get turned off. >> let me add to that and i will ask either of you to jump in. if my recollection is correct, when your boss, president obama sent the aumf to the hill, there is a transmittal letter. if i recall correctly, it said, although i have the authorization to conduct this war, i still recommend blah, blah, blah. you are putting your finger on part of that, that there is this sense upon the body of some in the senate and probably the house too, but if it ain't broke, you don't need to fix it. they do adequately cover this and why do we do this if it's not legally required? could you speak more to that? here you are in an administration that is taking kinetic action against the enemy, in my opinion fully covered by the 2001 aumf, but
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from what i can see from the outside looking in, wanting to engage congress to get engaged and fulfill their constitutional responsibilities. it's a matter of congressional hygiene. they have skin in the game. that they are recognizing that isis grew out of al qaeda and iraq in 2004. there was a formal split in 2012. they are really going off in their own direction and this makes more sense. could you put some more words around that? >> it seems to me to be careful to say that a new aumf was not necessary at the time for military operations to be lawful is not to say it's merely desirable to have an aumf. i used the word earlier imperative.
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it is imperative not as legal necessity but a proper function of our government and a number of subsidiary factors that there that we discussed. another sense in which time passes, it may go from not just desirable or imperative in the sense i've described, but legally necessary is as the adversary evolves. at the time we addressed this issue, we were dealing with what had been called al qaeda in iraq, aqi, a terrorist organization that was a component of al qaeda up until the differences between the leadership that was operating in syria and iraq. now we have isis manifestations of isis in libya, afghanistan. i don't know where boko haram is nowadays. both the 2001 aumf and the
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rationales under the 2001 aumf are not infinitely elastic to reach the adversary no matter what it is or how it manifests itself. i think if you take a longer view, it is imperative, but there are also legal reasons it would be wise and advantageous to the current administration to secure a new and express authorization. >> charlie? >> i quarrel a little bit with the notion that it is not legally necessary but still part of the core constitutional functioning of our government because if it is not legally necessary, that means the core constitutional function of our government is that congress' war powers are purely ceremonial.
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they need to be seen to be blessing the thing that can happen without them. >> they could repeal the 2001 aumf if they decided that the war should end. in the same manner, they can act to endorse the fight as it has evolved post-9/11. so, i disagree with that. >> okay. if they don't repeal it, then everything is fine. the other piece of it for public education purposes is the fact that congress has acted repeatedly in this area since 2014. because knowing how the executive branch is interpreting its authority, it has repeatedly authorized funds for the counter-isis operation. one of the very complicated things about all this is even if you are among the faction that thinks the administration's
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original assertion was edgy and maybe stretching the aumf too far, it may be that the problem has healed over time because congress has essentially ratified that theory by continuing to appropriate funds explicitly for the counter-isil operations, which amounts to authorization. this is one of the problems that senator young and senator kaine and others may have, because as time continues to pass, whatever sort of reading of madison's comments about the need to separate the power to decide whether to go to war or execute a war, it increases power to the executive and so forth. the damage is done if there was damage. at this point, it may be that the scab and the scar tissue has already formed.
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so the clean-up of the books by congress explicitly saying that isil and explicit organizations, whatever that means. i'm not sure what problems are being fixed. today if it ever were to happen. >> one of the things i argued before the senate armed services committee when they had the hearing in 2013 on isis, aumf and the loss of conflict, was that the 2001 aumf is self-limiting. and that it's not as broad as some would argue. now this gentleman asked the question many people have, which is, it seems like it's gone on forever. one associated force becomes the next associated force, et cetera. your predecessor and our friend, jeh johnson, gave a speech at yale law school, which you talk about in your excellent
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american society of international law speech in 2015, when you said talking about associated forces that an associated force must be an organized armed group that has entered the fight alongside al qaeda and against the united states and coalition partners. and then you go on to say it doesn't mean every group that commits terrorist acts is an associated force. and i argued the same. most law war scholars believe that. we are not talking about hezbollah or this group over here to change their name to something else that they're not associated with al qaeda. i'm not going to burden you with this question. i'll ask you, charlie, as a reporter, what is -- i mean, i asked the senator what the appetite on the hill was for passing an aumf and i agree that senator kaine, senator flake and
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others have done a good job trying to tee up the question. how would you answer the question i gave the senator? is there the appetite there? i have argued that an aumf is not a substitute for comprehensive strategy, it is simply the legal underpinnings to authorize the strategy. you want to pick up any part of that question? >> observationally, the thing that prevented congress, everyone in congress essentially supports fighting and defeating isis. there are no pro-isis or even let's stay home and let them solve their own problems because they attacked paris and everyone can see that. so why did congress pass an isis authorization in 2015 when the obama administration set it up? the reason was, there was a split between what the administration wanted and what republicans who controlled both branches wanted. the administration wanted a sunset. the administration wanted a
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limitation on the use of common ground forces entering offense operations and a formulation that was intended to allow some rescue or whatever, commando raids, but not occupation. the other view was no, we're going to go to war. you don't tie your hands in the hopes that you do everything. because of the experience of the 2001 aumf and the forever war that has grown out of it, on the left there was less appetite for that. let's not do that again. because there was no one saying we have to stop if we don't get something, because the administration was saying the existing authority was sufficient, the conflict could not be resolved. there was nothing that president would sign. it's easier to not do anything. now we have a new administration that would presumably sign a more open-ended aumf without ground forces.
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it seems like the conditions are there to clean this up as part of the next national defense authorization act or something. very few people are talking about it. there's a lot going on in the world and a lot going on in washington that maybe seems more urgent. nevertheless, i would not be shocked to see some language not unlike the one he was proposing folded into the ndaa that congress deals with at the end of this year despite the fact we are not hearing much about it. i don't see where the opposition to it is organized in the sense that obama wasn't going to sign the bill. trump will sign the bill. what do you think? >> so, as i think about judging a new aumf, from my perspective, the highest priority is on certainty and clarity as to what the authority is and that resides in terms of a follow-on
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aumf in defining who the enemy is. beyond that, you also want it to be adequate and sufficient to meet the threat, and tailored to the immediate and foreseeable threat. i think there is a concern at least among a good number of members about a blank check-type of authorization. that then leads to consideration of various limitations. geographic limitations, and a mode of fighting limitation, temporal limitation and others. and the former, i think, are particularly problematic in that they tend to erode clarity as to what the authority is and may erode the utility of an aumf to meet the foreseeable if not present threat. i think the time limitations, the sunset concept is entirely different.
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and if properly structured, isn't really a limitation at all. if properly structured, it is a public embrace of our democratic system where congress and the president have to agree to initiate conflict and this would be structured in a fashion to periodically reaffirm our commitment to that fight. so i think if it is a two-year limitation, that may have the effect and may signal to others that we are not committed to the fight. but i could foresee a sunset provision that places the sunset somewhere, perhaps a presidential term away and creates a mechanism for renewing the authority in advance of the sunset such that the public partners, the adversary are not
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being messaged that we are not committed to the fight, but rather we are committed to our democratic institutions and we have set up a mechanism to fight this fight as long as we have to fight the fight. i think to the extent as a practical matter in congress, there are those that are uncomfortable with a blank check and there are those that are uncomfortable with excessive limitations. i think a properly structured time limitation could be a point of compromise. >> if i could add one thing. you are starting to put your finger on why this is so hard. so he names in his taliban aq and isis in the associated forces, whatever that means. and successor organizations. so does the fact that he didn't name al-shabaab or didn't name boko haram, that the congressman had an opportunity to do so or a whatever, the little ones no one has ever heard of that are
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running around pakistan, are they not part of it? you're still ceding to the executive branch the decision to be part of the fight and you're not really solving the problem. so there's been various efforts to grapple with that. do we need notice or some sort of conditions that must be met? the other part is the blank check problem. it's not just congress started as an authorization in al qaeda and afghanistan and 9/11. now it's being used in isis in syria and so forth that it sort of spread. there is a history of using that authorization to do all kinds of other things, like have a warrantless surveillance program on domestic soil because the bush administration decided it
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authorized going around fisa. what else could it be used for? this is also part of the blank check anxieties. that maybe we need to put limits in it and it's easier to go with the existing theory that everything is fine and let's not open this pandora's box. i don't think that the language in and of itself will meet those anxieties because it seemed very broad and open-ended to me, it will attract alarm. >> let's pivot. i referenced jeh johnson's speech here and obama administration speeches around the country explaining the legal rationale for various aspects of what some call the war on terror. charlie, you are a journalist, you won the pulitzer prize. that must be nice. >> a long time ago now.
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>> you wrote about it extensively in "power wars." did you find that helpful and if so, why? in other words, does it make more sense for an administration given the complexities of the war for senior government officials in a methodical step by step approach to go in the public and try to explain to the extent it's practical and possible, the legal rationale for the actions they are taking. and stephen, if you're able, looking back now, did it meet the objectives you hoped it would serve? i'll start with charlie. >> the obama administration did things that were edgy and controversial in the area of war power and national security law.
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but as a general proposition, it saw a broad need and advantage in trying to explain itself. it wanted to be seen as an organization that took seriously the rule of law and was grappling with these difficult issues in the 21st century where it's not always clear what the law is. often the law was written for situations different than the one we are facing today and you have to interpret by analogy and there may be multiple possible interpretations, but also some implausible ones. and they wanted to show they were staying away from the crazy ones at least. they engendered through that a lot of public debate that i think was good for democracy, even if people didn't always agree with what they were doing and where they came down on things. like, is isis covered by the 9/11 authorization. to date, this administration has not been that way.
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the great example of that, only 100 and whatever days in, trump shot missiles at assad's forces in syria and offered no public rationalization for why he had legal authority to do that without the international law, without a u.n. security council resolution, without a self-defense claim, a very edgy thing to do. the obama people thought they came close to a redline episode, they thought they had an argument for why they could do it, but it was a thin one. i think even they would acknowledge. this administration is saying it doesn't have to explain itself. that is not good for democratic
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accountability and public debate and i hope they evolve on it. >> my sense of it is i first suggested, it was part of president obama's philosophy of governmance that there should be as much transparency as possible, and to include in matters of national security within the confines of preserving national security. from my perspective, it was a much more practical proposition. when i started in government in july of 2009, you couldn't pick up a newspaper without front-page references to the latest strike in southwest asia pursuant to our government's illegal counterterrorism program. it was as if it were conventional wisdom that what our government was doing to
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fight the terrorists in afghanistan and elsewhere was part of a secret illegal program. and it was disturbing me to have it characterized that way and i saw that as horribly corrosive, and again, in our system of government and in terms of public support for what our country was doing. but also potentially quite harmful for the rank and file people that we were asking to fight this fight, to have some widespread perception that these efforts were unlawful. it was also equally disturbing to me that there is a constant refrain that this was unlawful and no one seemed to care. from my perspective on the inside, it was important to
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articulate for our government, to articulate to our people why we were doing what we were doing and what the legal basis was for it. saw that in speeche state department legal adviser in 2010 and then the attorney general's speech in which he not only explained that domestic and international legal bases for counter-terrorism program and the lawfulness of using force against an american citizen who chooses to take up arms against our country. i think the end product was -- this is -- you asked about whether it was effective. on the matter that concerned me initially, this conventional drumbeat in the press and among some scholars that our country was pursuing an unlawful counter-terrorism program, that fell out of the public debate. you stopped seeing that. not that everyone was convinced
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or that all critics would be satisfied, but i think there was a broader understanding and wider acceptance of the lawfulness of our government's counter-terrorism activities than there was without that type of transparency. >> yeah. i -- i will just say, as a person who spent a little time at the pentagon in the bush administration, we certainly didn't do a very good job explaining the legal rationale for detention operations early on. in fact, we were pretty bad at it. i think we started turning the corner in the second part of the bush administration when john bellinger, who was the legal adviser, head of the legal shop at the state department, gave a series of speeches, one of which really stands out in my mind which is his halloween speech 2006 at the london school of economics where he really explained to our partners the legal rationale. and i think we probably should
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have done more of that, but john did yeoman's work. and watching the obama administration from the sidelines at a think-tank, i thought it was rather helpful, understanding where you were coming from in the legal justification. and i found president obama's may 21st, 2009, national archives speech particularly helpful because that really set the table at least on the detainee side on how they were going to try to solve that problem. and these are tough issues. we have a little time for questions. and if anyone has a question, please raise your hand and, again, identify yourself by name and organization and ask a question. >> here in the front. wait for the microphone, please. okay. >> chris harlaned with the international committee of the red cross. thank you for putting on the panel. thank you for the paper as well, which i thought was good and
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very interesting. you conclude in the paper, i think that that the united states should have an aumf before bringing islamic state group fighters to guantanamo because of the risk that you outline. you mention -- i think you say that there might be a successful legal challenge and that it's unclear currently. i wonder if you might say a couple of words about that and maybe the other panelists maybe discuss that potential risk as well. and maybe just, if you have any thoughts, there have been some people who have been writing the fact that new detainees from guantanamo would not, under the current system, would not get a periodic review board set up under the executive order that does that for the current detainees and whether you think that that would influence judges in the d.c. circuit and elsewhere in having to assess
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whether or not the people were there legally or whether that simply is a separate question and wouldn't play any role in it. >> thank you. >> i'll take the questions in order. we didn't cover the periodic review board issue, and i think it is an important and related concern. we just didn't have enough ink or space to cover it. you would think that, in the time i spent at the pentagon and since then, i would have analyzed every single case out of the d.c. circuit and come to some conclusion about that. well, i hadn't until we had done the analysis and tried to categorize the buckets, for lack of a better term, that each detainee fell into as the d.c. circuit analyzed and had to decide on their writs. and i -- you know, i harken back -- when i was at the pentagon, as you know, we had a close working relationship with
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your organization and it's a very important relationship, and the government still does, as i understand. we -- the bush administration had almost a perfect record before the supreme court. we almost lost every case. and, you know, you tend to remember your losses. and hopefully, you think about why you lost and what set the table to that litigation and how you can avoid that in the future. so perhaps it was the litigation risk averse side of my personality, but having been a defense attorney and a prosecutor and a judge, i tend to think hopefully through all sides of a litigation. and we picked up on the dissents that several of the judges said in the d.c. circuit cases. i think the further we get away from 9/11 and, there has been an
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interregnum of the times people have been brought to guantanamo. the obama administration did not bring one person, which was entirely their right not to. there has been no isis member brought to guantanamo. so i think we prudently concluded that the litigation risk is well above zero, that certainty is better than lack of certainty which stephen and others have stressed. and the senator stressed which is very kind of him to do so. i don't know what charlie and stephen think or whether they've read the paper, but i think that when you look at the litigation -- just the habeas litigation, and you look at who these isis members are -- and i don't know who they are. i have not seen the intelligence. i haven't been in the government for a long period of time. i can imagine that trying to connect the dots as the government lawyer between this particular isis member, back to the core group of people who
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could fall squarely under the 2000 aumf might be a heavy lift for a government lawyer to do. so that's the conclusion. and to your second part of your question, i don't know what this administration is going to do with respect to the periodic review boards. we had periodic reviews, as you know, during the bush administration. it was called something different, it was called the annual review boards. a.r.b.s. i would certainly hope that this administration would review detainees' files on a regular basis. i don't know if they are. i suspect they may be. i would think that would factor in a court's analysis especially if counsel for the detainee brought that to the court's attention. how would would turn out, i don't know. i would invite my colleagues to comment if they want. >> i would just add i did read the piece. as i mentioned earlier, i think it's a useful contribution to
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the debate and analytically a sound treatment of those cases. i have no disagreement on it. i am concerned about the implications of citing the -- citing the ability to put detainees at guantanamo as a reason to have another aumf for the very practical reason that that is a political lightning rod. harkening back to our earlier conversation, i think it is desirable to have the executive and the congress agree on the war-fighting authority here and have congress's participation be bipartisan if at all possible. guantanamo, like it or not, has become a political lightning rod. so, to the extent that, if i were strategizing, if you will, with senator young about getting a resolution passed, i don't think i would highlight it as a reason to pass it, enabling this
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administration to bring isis fighters to guantanamo. i think that might undermine a goal of trying to get bipartisan support. >> yeah. i totally agree. i think that's a tail wagging the dog problemin. to charlie's point, what's the legal basis, what's the need to do so. charlie, you want to jump in? >> i think that point is shrewd and that's the place where you get a hook, right? you better do this because you're screwed up if you don't. or taking the risk. if you take it off the table for political reasons you're sort of back in this purely aesthetic, wouldn't it be nice and send a warm and fuzzy message to the troops, which is hard to get any individual lawmaker to cast the hard vote that might come back to haunt him or her later when you don't have that boy, you better do it or else the government will be screwed up in some way argument in your
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quiver. >> yeah. final thoughts from either of you? >> thanks very much for having this. this is a pleasure. >> it has exceeded my expectations. you've been wonderful. i appreciate both of you taking time out of your very busy days. please join me in thanking this panel. [ applause ] up next, a senate hearing on the security of u.s. energy infrastructure and the threat posed by electromagnetic pulses or emps. bur burrs bursts of energy that can disable devices in the power grid. speakers. newt gingrich and the acting chair of the federal energy regulatory commission. this is about two

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